The judge cannot, of their own motion, order the automatic monetary adjustment of alimony between former spouses if such adjustment was not provided for in the settlement agreement.
Based on this understanding, the Third Panel of the Superior Court of Justice (STJ) upheld a ruling of the Court of Justice of São Paulo that denied the request for adjustment of the alimony amount due to the lack of provision in the agreement.
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In the appeal presented to the STJ, one of the parties argued that the annual monetary adjustment of the alimony would arise from an express legal provision. The appellant added that, since it arises directly from the law, the order of adjustment of the alimony by the court, of its own motion, would not be an extra petita decision (outside the request), but merely the granting of an implied request.
Alimony between former spouses – contract
According to the rapporteur, Justice Marco Aurélio Bellizze, the monetary adjustment of contractual obligations must be carried out in accordance with Law 10,192/2001, which expressly excludes the automatic application of the adjustment and restricts this possibility to recurring obligations with a term exceeding one year.
Bellizze cited precedents of the STJ showing that the agreements entered into voluntarily between former spouses, since they are within the sphere of their strict disposability, must be considered as true contracts, the validity and effectiveness of which depend exclusively on the soundness of the parties’ manifestation of will.
“Recognizing the consensual nature of the agreement that establishes the maintenance obligation between former spouses, the application of monetary adjustment to update the obligation over time must be expressly provided for in the contract,” he stated.
Omission
The rapporteur noted that, although the monetary adjustment of the maintenance obligation established judicially is legally determined by an “official index,” the absence of such provision in the agreement entered into between the parties excludes the possibility of automatic adjustment of the debt.
Thus, according to Bellizze, it is necessary to make a systematic and harmonious interpretation between the rule provided for in article 1,710 of the Civil Code – that maintenance obligations, of any nature, will be adjusted according to a regularly established official index – and the specific provision concerning monetary adjustment (article 1 of Law 10,192/2001).
“In the event of omission as to this requirement of prior and express deliberation, the solution cannot be identical for the cases of contractual and judicial obligations, since the specific rule for each of them, extracted from national legislation, is diametrically opposed. Thus, once the contract is silent as to the application of monetary adjustment for ascertaining the quantum owed, the value of the obligation is maintained at its historical value. On the other hand, where the judicial decision is silent as to the applicable index, the obligation must be adjusted, keeping the historically fixed amount updated,” he observed.
The justice also explained that alimony not paid within the term is subject to the imposition of monetary adjustment, which must apply from the date of maturity of the obligation, by force of the debtor’s liability for the damages arising from their default or non-performance, as set forth in article 395 of the 2002 Civil Code.
The number of this case is not disclosed due to judicial secrecy.
Source: STJ
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